England and Wales Care Standards Tribunal

 


MRS R v OFSTED [2003] 0202.EY
Mr I Robertson (Chairman) Mr J Churchill Mr K Coleman

The Tribunal met on 27 January 2004 at the Care Standards Tribunal hearing centre, Pocock Street, London. In accordance with the request of Mrs R this appeal was dealt with on the papers without the appearance or representation of either of the parties.

THE BACKGROUND

1. Mrs R made an application to become a Childminder in or around June 2001 to East Sussex County Council who at the time were the appropriate registration authority. Accompanying that application was a letter from Mr R informing the authority that he had been interviewed by the police following allegations made by his ex wife about his daughter. A file note in the registration authorities file notes comments made by the Children and families section that there were references to sexual abuse on the file and the following action is noted "go back to Tony to ask SSD to comment on suitability".
2. On 12 July the Registration Unit received the following information from the police;

"On 14/3/00 the subject was arrested and interviewed regarding allegations of sexual abuse of his 4 year old daughter. These arose from the subjects daughter telling her mother that her father "tickled her flower" – a family name for her vagina – when she was staying with him, and from her reluctance to visit him and incidents of bedwetting and nightmares following visits to him. The victim was not interviewed due to her age and no proceedings followed due to insufficient evidence"

3. On 3 September 2001 OFSTED took over registration responsibilities from Local Authorities. On 16 October 2001 OFSTED received a letter from the Children and Families section of E Sussex County Council. This letter stated inter alia;

"There was previous involvement with Mr R and his previous wife and family of a child protection nature in 1998 and again in 2000 when his daughter raised concern after the couple separated. Neither of these contacts concluded that Mr R posed a risk to children………." (our emphasis)

4. There then follows an inexplicable and wholly unacceptable delay in processing the application. On 22 August 2002 OFSTED wrote to Mrs R saying that some checks remained outstanding and asking if she still wished to continue with her application (now 14 months old). She confirmed that she did on 23 August 2002.
5. On 15 November OFSTED received a letter from the Business Support Officer at E Sussex County Council detailing all the notes of involvement with Mr R and his ex wife and daughter. As so much of OFSTEDS case turns on this letter we set out the detail in full;

"I have looked through the social services file in relation to Mr R, the information is as follows:

3/98 – Referral from Mr R's ex wife Kim, who has concerns about her daughters behaviour following contact with her father. Advice given.

3/99 – Kim reports possible emotional and sexual abuse

2/00 – Child protection investigation following referral from Health visitor who raised concerns about J's behaviour following contact with her dad (Mr R) and comments she was making which were indicative of sexual abuse. J was seen for a medical and no evidence of sexual abuse was found. Due to there being no evidence, NFA was taken. Contact with Mr R was stopped as J did not want to see him at that time. Kim was advised to seek solicitors advice regarding future contact.

5/00 – Referral by Health Visitor. J had started contact with Mr R and again her behaviour was concerning. Referral was made to (name of centre attended) for family work.

9/01 – Referral by Kim. Again raising concerns about contact with Mr R and J's comments/behaviour. Again advised to seek legal advice re. Contact

12/01 – Case closed. No further involvement since this time"

6. Upon receipt of this information OFSTED decided to interview both Mr and Mrs R and they were seen separately on 8 January 2003. Mrs R was then seen again on 22 January on both occasions by Clare Hanson (Team manager) and Alison Weaver (Childcare Inspector). On 27 February OFSTED sent Mrs R a Notice of Intention to refuse an application for registration under Section 79F(1)(a) Children Act 1989 on the basis that Mr R is nor suitable to be in regular contact with children under the age of 8. The Notice stated that;

"This opinion is based on information received from East Sussex Social Services department who informed us that between March 1998 and December 2001 there were 4 referrals of a child protection nature made against your husband, from different sources, in respect of his daughter from a previous relationship and information gathered by Childcare inspectors during recent interviews with you and your husband"

7. Mrs R made objections to the Notice but a panel sitting on 18 June 2003 upheld the decision to refuse registration. On 28 July Mrs R appealed on form B1. This hearing stems from that appeal.

THE LAW

8. It is the duty of OFSTED to grant an application for Registration unless they are satisfied that the person is not qualified for registration as a childminder. (S79F(1)). In this matter it is OFSTED's contention that Mrs R is not so qualified as Mr R does not comply with S79B (4)(b) in other words that he is not suitable to be in regular contact with children. The Burden of Proof is therefore on OFSTED. The standard of proof is the balance of probabilities but the more serious the allegation the more cogent the evidence has to be to satisfy that allegation. In this case as the allegation is that Mr R is a sexual risk to children the evidence must be extremely cogent to satisfy this.

THE EVIDENCE PRESENTED BY OFSTED

9. We were extremely disturbed at the poverty of "evidence" produced by OFSTED. Their whole case appears to be based upon the letter of 15 November 2002 cited above. The writer of the letter is an officer of the authority looking at a file, he has no personal knowledge of the case. We do not know whether he is reciting all that is on the file or merely presenting a precis. He is reporting what others have written. They themselves have written what others have said to them. We do not know the context of this, in particular at no point are we told whether anyone other than mother has heard the child make any allegations. We do not know whether the references to the Health visitor relate to what she herself saw or what was recited to her by the original Mrs R. We do not know whether there were one or two Health Visitors involved. At best this information is inadequate 3^rd hand hearsay.
10. At no point do OFSTED appear to have revisited the letter from East Sussex dated 16 October 2001 from the children and families team that clearly stated that "Neither of these contacts concluded that Mr R posed a risk to children". Nor have OFSTED at any stage looked at the allegations and put them into context namely an acrimonious divorce and contact dispute. Experience shows that such cases require particularly clinical forensic analysis. OFSTED have a clear duty to ensure that children are protected and if the letter of 15 November raised the concerns that they say then they should have investigated matters thoroughly. They should have obtained copies of the original files, interviewed the case social workers, interviewed the original Mrs R, interviewed the Health visitor(s), obtained more information from the police (including with Mr R's permission) his interview tapes and then interviewed Mr R in the context of proper first hand information if appropriate. At all time they should filter their investigation through knowledge of what amounts to "evidence" and the need for such evidence to be cogent.
11. In the event Mr R was interviewed on the basis of the 15 November letter alone. Certain preconceptions were brought to that interview which in our view cannot be substantiated. For example both inspectors felt it significant that Mr R stated that he was unaware of all but one of the allegations. There is however no evidence at all that any of the Allegations/referrals were shared with him by social services other than that of 2/00, therefore he would not know of them. Furthermore as the inspectors seemed loathe to share the details of the other referrals it is difficult to know what he was supposed to deny. Ms Weaver felt that "it was significant that he did not deny any of the allegations". On the evidence we have we have no indication that he knew of any other allegations other than that of February which he did deny in interview "the way I touched my daughter was not wrong". Furthermore it must be recalled that he himself brought this matter up in his letter of 23 January 2001. Far from hiding matters he was volunteering them.
12. The Statements of both Ms Weaver and Ms Hanson are riddled with comments about Mr R's responses and the significance or otherwise of his responses. Such opinions are evidentially irrelevant and we are surprised that they appear in professionally prepared witness statements. We feel that they have played a part in the original decision and in the panels upholding of that decision. This is wrong and shows a clear departure from acceptable standards of professional objectivity.
13. We have not considered at any length the interviews with Mrs R as we consider that these are as contaminated by the error in approach as that of Mr R. In any event her ability to protect does not form part of the original decision although we note with some concern that the area manager in her statement of 14 January 2004 does try to bring this up as a further matter to be considered. We disregard this in its entirety.

THE DECISION

14. We grant the appeal. We direct under S79M Children Act 1989 that the decision of 25 June 2003 to refuse Mrs R's application for Registration shall have no effect. Accordingly under S79F the application shall be granted.

This is the unanimous decision of the Tribunal

Dated: 6^th of February 2004

Ian Robertson (Chairman)

James Churchill

Ken Coleman